We use cookies to customise content for your subscription and for analytics.If you continue to browse Lexology, we will assume that you are happy to receive all our cookies. For further information please read our Cookie Policy.

Did You Know...?

Did you know ... that, following recent differing decisions of the Fair Work Commission (FWC), employers must still tread a fine line in determining whether employee misconduct on social media is a sufficiently valid reason for dismissal.

In the very recent case of Stephen Campbell v Qube Ports Pty Ltd t/a Qube Ports & Bulk [2017] FWC 1211 (16 March 2017), the FWC considered the conduct of a veteran employee who publicly disrespected his employer's management on Facebook. The employee had been investigated for misconduct after damaging company property, failing to report the damage and lying when questioned about it. Taking umbrage to these allegations the employee went to Facebook to label the chairman a "pig" in a post that disrespected the employer's management and policies.

While the employee's social media conduct was not the reason for their dismissal, the FWC noted that this type of conduct was "unacceptable" and suggested this conduct was enough to warrant the employee's dismissal.

In other recent decisions however, the FWC has found conduct on social media did not warrant dismissal. These included thinly veiled criticisms and disparaging comments made by a teacher on Facebook in Mary-Jane Anders v The Hutchins School [2016] FWC 241 (15 January 2016). In the case of Michael Renton v Bendigo Health Care Group [2016] FWC 9089 (30 December 2016) a nurse who "tagged" work colleagues in sexually explicit videos on Facebook and called his supervisor a "red-headed c**t" in personal messages to a fellow employee was found to have been harshly dismissed. The nurse's termination was deemed by Commissioner Bissett to be "disproportionate to the gravity of the misconduct".

What constitutes conduct worthy of dismissal remains ambiguous in some cases. Therefore, employers should have a clear and comprehensive social media policy which provides examples of unacceptable conduct, and provide training on that policy, so that all employees are aware of the employer's expectations on acceptable conduct and when disciplinary action may be taken (including up to termination of employment). Employers can then more readily seek to rely on a policy breach to support disciplinary action (including dismissal) for misconduct on social media.